Personal injury and fatal accident brief - July 2016

Welcome to the July 2016 edition of the Personal injury and fatal accident brief.

Recent judgments of no liability

In this month’s Brief, we will consider two Judgments where the Defendants were found to have no liability. In Chiu Man Chi, the employer was found not liable to an employee who misstepped while descending a stage after a performance. Lai Pui Ling involved a wakeboarding accident where the Plaintiff suffered a serious head injury when she fell forward in the sea while being towed in a boat driven by the 2nd Defendant.

In Chiu Man Chi, the Plaintiff was an administrative assistant who was asked by her employer to do a short performance on stage during a marketing event on the Mainland. The performance took place on a T-shaped stage at the end of which was 3 steps to the floor of the function room. At the end of her performance, she was descending from the stage when she fell as she threw a soft toy into the audience.

She alleged that the accident was caused by her employer’s negligence as she did not want to do the performance, there was no training and no warnings not to run down the steps. However, the Court disagreed. It found that she was walking at the time and not running, the stage was carpeted and well-lit and she merely missed her step when she fell. The task she was asked to preform was a simple one and could be safely left to the Plaintiff and her colleagues to perform as they chose. No special system of work or special instructions are needed whether the task required of the employee is perfectly safe if the employee exercises the standard of care for her own safety that can reasonably be expected of her. The accident was just a “human error of the most common and forgivable kind, and there is no shame to be associated with it.”

It is interesting to note that the Court found that if there were to be liability, damages would be around $225,000, which is less than EC received. It found that she had very minor injuries despite her adducing medical reports from orthopaedic, neurological and psychiatric experts.

In Lai Pui Ling, the Plaintiff alleged that the coxswain of the boat drove the boat too fast, failed to provide her with a safety helmet, failed to advise her not to consume any alcohol or prevent her from wakeboarding after consuming alcohol and driving the boat under the influence of alcohol. Neither the coxswain nor the 1st Defendant, the registered owner of the boat were legally represented and they did not attend the trial.

The Court found that the coxswain did not drink that much beer at lunch and he was not impaired by the alcohol consumed. It was not the coxswain’s responsibility to provide training or instructions on wakeboarding as he was simply contracted to drive the boat. The Plaintiff was an adult in her late 20s who could reasonably be expected to take care of herself and to avoid taking part in water sports if she felt unwell or unfit. Wakeboarding is a sport with inherent risks and occurrence of the accident alone cannot infer negligence. 

Quantum was assessed at around $6.6m if liability was established.

The above two Judgements are good for defendants and insurers as they show that the courts are not always pro-plaintiff and unless there is strong cogent evidence to prove liability, claimants will have an uphill battle.